October 2002 AI Index: EUR 41/12/2002
In November 1997 the United Nations (UN) Committee against Torture examined Spains third periodic report on its implementation of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Committee welcomed the measures taken by the government to implement the core safeguards set out in the Convention, including the definitive abolition of the death penalty and the introduction into the new Penal Code of articles prohibiting torture and ill-treatment. However, it observed that the long delays in legal proceedings relating to torture, both at the investigation and trial stages, were absolutely incompatible with the promptness required by the Convention, and that court sentences against officials accused of torture were often nominal and seemed to show an acquiescence which deprives punishment of its intended dissuasive and exemplary effect and conspires against the effective eradication of torture. The Committee expressed doubts about the Spanish Governments claims, in its report, that cases of torture and ill-treatment had been almost eradicated, and affirmed that it had continued to receive frequent allegations of torture and ill-treatment, many of which appeared to reveal signs of racial discrimination. It also expressed concern at the way in which the continuing practice of extended incommunicado detention facilitated the practice of torture.
The Committee urged the authorities to take the necessary measures to curtail the excessive length of investigations into complaints of torture and ill-treatment; to adopt all possible legal measures to ensure that penalties for crimes of torture were effective and exemplary; and to look into ways of bringing an end to incommunicado detention and restrictions on the right of access of detainees to a lawyer of their choice. The Committee also urged the authorities to adopt procedures to investigate all cases of torture and ill-treatment that came to their attention, by whatever means, even where the alleged victims had not lodged formal complaints.(1)
The Spanish governments fourth periodic report, to be examined by the Committee in November 2002, states from the outset that there is no torture or ill-treatment in Spain, except in very isolated instances. The Spanish authorities claim that this can be confirmed by the fact that allegations of torture or ill-treatment have disappeared from, or are very rarely mentioned in, Amnesty International reports, or in those of the Spanish Ombudsman.(2)
With regard to Amnesty International reports, the Spanish governments assertion is the contrary of the truth. Since Spains third periodic report was examined by the Committee Amnesty International has published 21 external documents about Spain (from press statements to major reports), the bulk of which are concerned with allegations of torture and ill-treatment.(3) (A list is attached to this briefing). In April 2002 the organization published a major report on race-related ill-treatment in Spain, which documented a large number of detailed individual complaints of torture and ill-treatment by persons of non-Spanish ethnic origin or by members of ethnic minorities, such as Roma.(4) The organization has also documented many complaints and reports from detainees arrested and held incommunicado as suspected members or sympathizers of the Basque armed group
Euskadi Ta Askatasuna (ETA). In addition Amnesty International has several times written to the Spanish Government to express its concerns about torture and ill-treatment and called on the government to consider a number of specific recommendations.
This document summarises and updates some of the main concerns of Amnesty International since 1997, as described in the attached documents.
Definition of torture in Spanish Penal Code (
Article 1)
The definition of torture in Article 174 of the Spanish Penal Code contains similar wording to that of Article 1 of the Convention against Torture. Indeed, in its Concluding observations, made in 1997, the Committee noted that not only had Spain incorporated the offence of torture and other cruel, inhuman or degrading treatment or punishment into its domestic legislation, but had expanded on it in certain important respects. However, in the context of its work on race-related torture or ill-treatment Amnesty International has noted that the purposes outlined in Article 174 of the Spanish Penal Code are defined more narrowly and exclusively than those outlined in the Convention, with no reference to torture
for any reason based on discrimination of any kind.(5) Amnesty International feels that this is an important omission in the definition of torture in Spanish law.(6)
Torture during incommunicado detention (
Article 2, Article 11, Article 12, Article 13)
Amnesty International opposes incommunicado detention. The organization believes it to be beyond question that incommunicado detention facilitates torture and ill-treatment. Without visits by lawyers, independent medical professionals, family or others to provide scrutiny of the detainees health and conditions, such human rights violations are far more likely to occur.
Amnesty International continues to receive frequent allegations of torture in incommunicado detention. Some of these are highly detailed and corroborated by medical evidence. The organizations longstanding concerns about such torture were last expressed in a report that was published in June 1999 and entitled
Spain: A briefing on human rights concerns in relation to the Basque peace process (AI Index: EUR 41/01/99). Amnesty Internationals main concerns about incommunicado detention can broadly be summarised as follows:
- Article 520 bis of the Code of Criminal Procedure (CPP), introduced by Organic Law 4 of 25 May 1998, extends to five days the total period during which detainees accused of terrorist-related offences may be held incommunicado (48 hours in addition to the maximum 72 hours otherwise provided before a detainee must be released or taken before a judge). Article 527 of the CPP severely restricts the right of such detainees to legal and medical access and prohibits any communication of the fact, or place of arrest and detention to relatives or friends. Detainees are permitted contact only with a state-appointed lawyer, but such contact is in turn very restricted. Detainees may not meet in private with the state-appointed lawyer after a police statement is made. The lawyer does not attend interrogation sessions prior to this and is silent while the statement is being made, thereby effectively reducing his or her role to that of mere observer. This point has also been made by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT).(7) These concerns about drastically curtailed legal access and prohibition on communication with the outside world are also shared by the Human Rights Committee, the UN Commission on Human Rights, and the UN Special Rapporteur on torture, among others, as well as by the Committee itself.
- Requests to extend incommunicado detention must be substantiated (mediante comunicación motivada) by the competent judge. However, it is Amnesty Internationals experience that such substantiation is usually based simply on a reference to an individuals suspected links with terrorism - traditionally with ETA. There is no further elaboration of evidence and the request is usually automatic. Judges can, at any time, require information, or personally, or by delegation, obtain information on the situation of the detainee where he or she is detained. However, this is left to the judges discretion, and in practice judges rarely appear to avail themselves of their right to obtain information personally.
- Detainees held incommunicado may see court-appointed forensic doctors every day but are not allowed a doctor of their own choice.(8) In a report published in 2000 the CPT recommended that: persons held incommunicado ... be guaranteed the right to be examined by a doctor of their own choice, it being understood that such a second examination may take place in the presence of a State-appointed forensic doctor.(9) Amnesty International shares with the CPT a concern about the quality of the medical reports issued with regard to detainees held incommunicado. Another difficulty in obtaining medical evidence is that the kinds of torture frequently alleged by detainees include torture which cannot be easily noted, eg. recourse to asphyxiation by the placing of a plastic bag over the head; application of electric shocks; standing for prolonged periods or performing physical exercises to the point of exhaustion; even blows to the body, if inflicted with an open hand or through a blanket or foam rubber.
- Amnesty International does not believe that torture in Spain is systematic, but it is concerned, as stated above, about the frequency of the allegations of torture, which cannot all necessarily be explained away as a strategy by detainees to undermine the moral credibility of the authorities. Amnesty International has received some very serious and highly detailed reports, which appear to be corroborated by medical evidence. Many of the allegations referred to the practice of asphyxiation with plastic bags (la bolsa); repeated kicks and blows of the hand on the head or testicles; forced physical exercises for long periods of time; claims of sexual harassment or abuse; threats of execution, rape, miscarriage or injury to partners and relatives. Some reports have also referred to the practice of immersing the head in water (la bañera) or to the application of electrodes to penis, stomach, chest or ear lobes. Individual cases have been described in successive Amnesty International documents.(10)
- Although convictions of torturers occur, these are rare. In its last published report the CPT noted that: in the course of the delegations discussions with members of the General Council of the Judiciary, it emerged that examining judges and prosecutors may not always be displaying due diligence when allegations of ill-treatment are brought to their attention. The CPTs own findings during the 1998 visit suggested that judges and public prosecutors could be more proactive when they receive such allegations. (11) In addition to this, the standard of forensic reports is often poor. Many detainees may also be afraid to report injuries to state-appointed doctors while being held incommunicado, and trials involving torture complaints are often delayed for long periods. Where torture has been found to have occurred and torturers are convicted, awards of compensation by courts to torture victims are usually low and may take between seven and 19 years to be decided.
In 1999 Amnesty International made four specific recommendations. It urged the Spanish authorities to: 1) immediately abrogate Article 520 bis of the CPP, extending incommunicado detention, and Article 527 of the CPP, which allows a detainee access only to an officially appointed lawyer, subject to special restrictions and prohibits any communication of place of arrest or detention to the outside world; 2) take steps to prevent the virtually systematic application of incommunicado detention with a view to abandoning the use of incommunicado detention outright; 3) forbid the use of hooding and blindfolding; 4) consider the introduction of video recording of interrogations, as a means both of protecting detainees held incommunicado and of law enforcement officers who may be falsely accused of acts of torture or ill-treatment.
The Spanish authorities have not commented to Amnesty International on these recommendations. Indeed, the authorities do not appear so far to have moved towards any of the recommendations made by treaty bodies or international organizations with a view to easing restrictions on incommunicado detention or making effective improvements to it, such as granting the right of access to a lawyer from the outset of custody. In the meantime, torture allegations continue to be made. In August 2001 the UN Special Rapporteur on torture submitted to the Spanish authorities for comment a large number of complaints of torture or ill-treatment by prison officers, Civil Guards or police, including approximately 55 by persons who had been held incommunicado.
Racism in law and practiceA number of articles of the Spanish Penal Code punish racial discrimination or racial hatred. The new Penal Code, which entered into force on 26 May 1996, recognizes a number of offences against the exercise of fundamental rights and public freedoms, involving the provocation of discrimination, hatred or violence on racist grounds. One potentially extremely important addition to the new Penal Code is Article 22.4, which, in combination with Article 66.3, sets out as an aggravating factor in a crime, punishable with comparative severity, one that is motivated by racist or other discriminatory motives.
However, the Spanish Government has commented to the UN Committee on the Elimination of Racial Discrimination (CERD) - which, in 2000, expressed continuing concerns about reports of racist attitudes on the part of the police and Civil Guard officers(12) - that, in practice, courts of law found it difficult to detect cases of racial discrimination because statements made to police or courts were more likely to be classified simply under the heading of
lesiones (injuries), without regard to possible motive. Some judges appar to be reluctant to give serious consideration to evidence involving the aggravating factor of racism when requested to do so by prosecutors. Amnesty International believes that police officers and courts should ensure that every attempt is made to investigate, wherever relevant, the possibility of a racial motive for ill-treatment or torture, as well as the allegation of ill-treatment or torture in itself.
A specific development of concern to Amnesty International was a Constitutional Court judgment of 29 January 2001, which ruled that skin colour, or other foreign appearance, could be used as a criterion for deciding when police officers could carry out identity checks, thereby heightening concerns that individual police practice, involving racial discrimination, had been converted into a constitutional doctrine. As Amnesty International has noted: The importance of this decision cannot be under-estimated, given that, in AIs experience, the majority of cases of race-related ill-treatment in Spain stem from incidents arising from identity checks, where individuals may be the victims of racial profiling.(13)
Race-related torture and ill-treatment by law enforcement officers(Article 2, Article 4, Article 10, Article 11, Article 12, Article 13)In April 2002 Amnesty International published a 100-page report entitled
Spain: Crisis of identity: Race-related Torture and Ill-treatment by State Agents (AI Index: EUR 41/001/2002).(14) The report looked at race-related torture or ill-treatment, documenting deaths in custody in disputed circumstances(15); cases of rape and sexual assault by police and Civil Guards; ill-treatment of persons of foreign origin in general; ill-treatment of Roma; arbitrary detentions; illegal expulsions and ill-treatment of children, particularly in Ceuta and Melilla; ill-treatment of adults during expulsion procedures and in detention or reception centres; use of sedatives or restraints during forcible deportations; mass forcible expulsions; the failure of police to protect against racist violence (by reference to a study of the race riots in El Ejido in February 2000) and the problem of impunity.
Amnesty International concluded that allegations of ill-treatment were frequent and widespread. Despite the existence of laws and codes which attempt to guard against discriminatory or arbitrary conduct by state agents, racial profiling was common and the discriminatory use of identity checks - sanctioned by the above-mentioned Constitutional Court ruling - had led to a situation in which many persons of foreign origin in Spain had been abused, and physically ill-treated, by public officials. There were numerous allegations that those who were intercepted or arrested had not been given explanations for their interception or arrest, and that challenges had been interpreted as resistance to police authority, and often penalized. Undocumented foreign women were particularly vulnerable to torture in the form of rape or sexual assault while in custody, and several cases illustrated the need for a proper code of procedure for the registration, supervision or transfer of detainees being held in custody, as well as for doctors and lawyers to be allowed to examine their patients, or interview their clients, in privacy. Immigrants subject to expulsion procedures had not been treated with dignity or transparency, while impunity - or effective impunity - was an issue that affected ethnic minorities or foreign nationals in a specific way.
The report called on the Spanish authorities to adopt a national strategy and plan of action to combat all forms of racism. The report also contained over 20 more specific recommendations on preventing impunity; on safeguards against ill-treatment during detention and in the context of immigration controls; on training and on the ratification and implementation of international standards. It called on the authorities, in general, to adopt a national strategy and plan of action to combat all forms of racism, including specific measures to prevent torture and ill-treatment and related manifestations of racism in the administration of justice.
In April 2002 the Spanish Vice President of the Government and Minister of the Interior replied to the report, denying its conclusions. He emphasised that the security forces acted with enormous dedication and sacrifice in the defence of human rights, especially in the field of immigration. He stated that the Spanish government was also irrevocably committed to the defence of human rights and the judicial system was absolutely committed to combatting racism. The Minister stated that children were not expelled from Ceuta and Melilla, as stated in the report, but were expatriated according to due process of law, and that judges and magistrates had sufficient means to deal with each individual case independently and impartially. The Minister also commented on several individual cases mentioned in the report, stating that one contained serious inaccuracies.
Amnesty International, which responded point by point to the letter from the Spanish government - also stating that the comments made by the Minister in his letter did not in any way indicate that the report contained important inaccuracies, as had been claimed in statements by the Minister to the press - deeply regrets the Governments continuing refusal to recognize the race-related background of many cases of human rights violations in Spain. The Spanish government has not expressed as yet any opinion about the reports recommendations. The organization believes that the concerns expressed in its report continue to be highly relevant.
Rape as torture(Article 2, Article 4, Article 11, Article 12, Article 13)International and regional human rights bodies have ruled that rape by officials always amounts to torture and cannot be considered a personal or private act, and therefore a common criminal act. Amnesty International therefore urges judicial officials in Spain to recognize that rape or serious sexual assault committed by or with the consent or acquiescence of a public official is always a form of torture.
Amnesty International has expressed concern about the number of reports of rape or other sexual abuse of foreign women in police custody - particularly at night and during weekend or holiday periods.(16) In the cases it has documented, the women have not necessarily been raped or sexually assaulted because of racial hostility, but because their racial origins had placed them in a particularly vulnerable situation, in which they were more likely than other women to be stopped by police and taken to police stations, or to come into contact with Civil Guard officers. Amnesty International believes that cases of rape or sexual assault on immigrants (often of South American or North African nationality) continue to occur because some officers believe that the vulnerability of immigrant women without documents, or whose documents are not in order - and who may fear deportation even more than sexual abuse - means that they are unlikely to lodge complaints, or, if they do, that sympathetic judges or a sense of police solidarity will protect the officers from judicial sanction.
Amnesty International wishes to highlight the cases of
Rita Margaret Rogerio, a Brazilian national, and
Miriam Rosa Verástegui Templo, a Peruvian national. In the first case, two courts (the first instance Court of Vizcaya and the Supreme Court) concluded that Rita Rogerio had been raped by a National Police officer, with the connivance of two others, present in an outer room. However, the police officers were acquitted on grounds of lack of evidence (in effect the failure of police officers to testify against colleagues). In 1999 the Supreme Court, in a strongly worded decision, stated that it was incompatible with the democratic rule of law that an extremely serious and proven case of rape remained unpunished because of archaic corporativist ideas of false camaraderie. A new trial opened against two National Police officers for torture of Rita Rogerio. The officers denied torture and were supported by the public prosecutor. In March 2000 they were acquitted on grounds of lack of evidence identifying those responsible.
Amnesty International was concerned about the Minister of the Interiors comments to the organization about this case because they made significant omissions. The Minister stated merely that the Court of Vizcaya had acquitted the officers and that their acquittal had been upheld by the Supreme Court. The Minister added that a subsequent internal police investigation had concluded, after detailed examination, that there had been no sexual assault, nor had there been any administrative infraction. Amnesty International pointed out to the Minister that, despite the acquittals, both courts had clearly concluded that Rita Rogerio had been raped. Indeed, a former Interior Minister had expressed his repugnanceabout the case. The organization asked for further information about the police investigation, but this has not been forthcoming.
As regards Miriam Rosa Verástegui, who was sexually assaulted in a National Police station in June 1998, a police officer was convicted to a four-year prison term for sexual assault on 10 April 2002. However, the officer has appealed and the sentence is not yet, therefore, definitive. Amnesty International was concerned about the delay in formally charging the officer. This did not occur until 2000. Examination of the case also showed that, owing to the fear and vulnerable circumstances of the detainee, a complaint against the police officer would never have been made if a woman police officer had not observed the Peruvian womans anguish, and encouraged her to do so.
In another, more recent case known to Amnesty International, a Colombian woman (J), was sexually assaulted by a police officer at Valladolid bus station in April 2001. In this case prompt action was taken against the officer, who was sentenced to 12 years imprisonment by the Provincial Criminal Court of Valladolid. The court remarked that, given her irregular situation in Spain, J was in an especially vulnerable position vis-a-vis the police officer. The police officer has appealed against the sentence, which is, therefore, not definitive.
Amnesty International is continuing to monitor and investigate other cases of sexual assault and rape in custody, or allegations of such assault and rape. The organization is also investigating other cases of alleged ill-treatment of foreign women, such as that of the Dominican national
Claudia Peña Ureña, who was allegedly racially insulted and beaten in front of her little daughter by National Police officers at Torrejón de Ardoz (Comunidad de Madrid) in March 2002.(17)
Ill-treatment and expulsion of foreign children(Article 2, Article 3)Spanish law regulating the rights and duties of foreigners includes the obligation to protect and care for unaccompanied foreign minors, and to grant residence permits, within a period of months, to those the authorities have not been able to reunite with their families or carers. In recent years Amnesty International became concerned that unaccompanied Moroccan children in the autonomous Spanish cities of Ceuta and Melilla were being ill-treated in the course of systematic expulsions across the Moroccan border, which were being carried out in violation of the provisions of the law. Amnesty International was also concerned that the children were being ill-treated by Moroccan police following expulsion. The organization has repeatedly called on the Spanish authorities to abide by international standards on the care and protection of unaccompanied children.
In June 2002 the UN Committee on the Rights of the Child likewise expressed deep alarm about the conditions of foreign children. In its Concluding observations, published on 7 June, the Committee regretted that the Spanish authorities had insufficiently addressed a number of issues previously raised by the Committee, including the situation of child asylum seekers and unaccompanied children. It recommended that the authorities take nine urgent measures to improve the conditions of the children.(18)
In July 2001 Amnesty International wrote to the Spanish government to express its concern about the failure of the authorities to adequately care and protect unaccompanied foreign children. This concern was fully justified when, that same month, the authorities in Melilla began to carry out the expulsion of large numbers of children, many of whom had been living for some time at reception centres in Melilla, and had received residence permits. By January 2002 some 44 operations of expulsion of children had been recorded.
A Melilla-based childrens rights organization claimed there was a pattern in the way in which the expulsions were carried out.(19) The children were taken by police officers from reception centres to the National Police station. They were not informed that they were to be expelled. They were not allowed to exert their rights to a hearing to determine the legality of the expulsion. They had no legal assistance. They were taken to the frontier in police cars, and by armed and uniformed police. They were handed over to the Moroccan police at the customs post. In the vast majority of cases, if not in all, they were not received by a family member or Moroccan social services representative. They were then abandoned in the street - a particularly serious problem for smaller children. There have been many allegations that, while in custody in Morocco, and before being thrown out again onto the street, the children have been imprisoned for several hours with adults, denied food and water and beaten with truncheons while being interrogated about the identity and location of their families.
Amnesty International also remains concerned about the widely-reported inadequacy of facilities for the care of undocumented children (although conditions at the reception centre of La Esperanza in Ceuta, for example, have reportedly improved in recent months). The non-governmental organization
Médicos sin Fronteras (Doctors without Borders) has, in addition, brought attention to the poor health and physical abuse which children suffer while living in the streets, port installations and underground or hillside tunnels, and to the apparently inadequate conditions in Ceutas only reception centre for the children.
In April 2002 Amnesty International brought to the Governments attention five main areas of concern with regard to the children: expulsion of minors who were under the protection of the city authorities, without regard to the due process of law; alleged ill-treatment of minors in the context of expulsions, by both Spanish and Morooccan officers; failure to protect children abandoned in border areas, or living in the streets, and alleged ill-treatment by carers or other minors and poor and degrading conditions in reception centres. The Spanish government told Amnesty International that there was no problem whatsover with the repatriation of the children. However, in May 2002 a number of further developments took place. The public prosecutor attached to the High Court (
Tribunal Superior de Justicia) of Málaga appealed against the expulsion of 17 out of 36 repatriations carried out by the Melilla authorities on the grounds that they were illegal. Reports also appeared about an investigation into expulsion of children that had been carried out by the Spanish Ombudsman, and which had concluded that the authorities were not carrying out the law (specifically, the Aliens Law or
Ley de Extranjería), in the sense that they were still failing to protect unaccompanied children. These children, often from broken homes, continued to be abandoned at the frontier, without being placed in the care of families or other guardians. In May 2002 Amnesty International again felt obliged to express concern about the situation, particularly about an announcement by the Melilla governement that it would not continue to extend protection to unaccompanied children. At the same time there were reports that 40 children had fled from the Esperanza reception centre in Ceuta because they feared being returned across the frontier.
Impunity(Article 12, Article 13)Amnesty International has welcomed the introduction of articles in the current Penal Code which specifically prohibit torture and ill-treatment, and increase the scope of the laws punishing such acts. The organization is aware that some public officials are indeed convicted by courts for acts of torture and ill-treatment. However, Amnesty International believes that impunity, or effective impunity, is still a major problem in Spain and it has frequently expressed its concern about a number of factors which point to the existence of such impunity.
In some cases the length of the judicial process is so great that, by the time a trial opens, accused officers may not be tried because the period during which prosecution could be brought has lapsed (
prescripción del delito). Delays of up to 15 or even 20 years have been known. In some cases officers already convicted for a crime of torture, but whose appeals were still pending, have been selected for promotional courses. Where sentences passed by courts of first instance may more appropriately reflect the seriousness of the crime committed, they may be substantially reduced to non-custodial sentences at subsequent court hearings.
In January 2001 pardons were announced for 11 National Police officers and three Civil Guards who had been convicted of crimes of torture. They reportedly had their sentences cut by two thirds. Shortly after the publication of the pardons, in a separate development, a posthumous medal was awarded to Melitón Manzanas, the former head of a political intelligence police unit during the Francoist era. The police chief was responsible for the torture of hundreds of Basques. He was the first targeted victim of an ETA commando in August 1968. The medal is made to victims of terrorism. Amnesty International warned that: The award of pardons and honours for torturers sends out a clear message - that violations of human rights will not be effectively punished in Spain. In 1998 Amnesty International criticized the frequency of pardons for convicted torturers, noting that 10 of the 12 persons convicted of the kidnapping and illegal detention of French businessman Segundo Marey - part of the dirty war - had their sentences almost immediately cut by two thirds, while the remainder of their sentences were suspended pending appeal to the Constitutional Court.
Amnesty International believes that impunity is an issue that affects ethnic minorities or foreign nationals in a specific way. The latter, if undocumented, may fear to bring complaints about police officers or Civil Guards because of anxiety that they will be expelled from the country if they take any action. Other factors include fear of bringing complaints because of the common practice whereby law enforcement officers lodge counter-complaints or threaten other reprisals; possible lack of interpreters or translators; problems in availability of lawyers to bring cases, owing to expense, lack of interest or inadequacy of legal aid; failure of law enforcement officers to register complaints, and so on. Police officers also tend to close ranks and shield the identity of other officers, as the Rita Rogerio case illustrates. There are delays in, or undue length of, proceedings. There is also wariness or timidity on the part of many prosecutors, investigating judges and courts with regard to bringing cases against, or convicting public officials.(20) The above-mentioned report gives specific illustrations of these points.
One case which Amnesty International wishes to highlight is that of the three Ceuta police officers,
Manuel Navia Fernández,
Juan António Espinosa Ramirez and
Juan Luis Ramos Muñoz. In October 1998, after unsuccessfully attempting to alert their colleagues and superiors to irregularities in the expulsion of unaccompanied children from Ceuta, they brought a criminal complaint against the head of the Local Police, a Ceuta government official and three other police officers in October 1998. The three Local Police officers claimed that children were subjected to detention, often with adults, for several hours in a police van, without seats, windows, ventilation or even water. There were also allegations that some children had been physically ill-treated.
In March 1999 the Attorney General ordered that the practice of direct expulsions by Local Police officers be ended. Allegations of ill-treatment of the children by Spanish police officers also subsided. However, as a direct result of their action in bringing a judicial complaint, the officers were withdrawn from patrol duty and sent to guard the local cemetery. They were then suspended from duty, without pay, pending disciplinary proceedings against them. Although the three offficers were reinstated, for lack of evidence against them, several months later, a criminal complaint was lodged against them for making false acusations. There were continual delays in the proceedings and the officers were subjected to continual harassment and vilification. In April 2002 Amnesty International was informed that an investigating judge had closed the case brought by the officers, and that an appeal against that decision was being lodged. The organization is not clear about the current status of the proceedings and whether the counter-complaint against the officers is still being pursued. Amnesty International has twice asked the Spanish government for information about this case, but has not received an answer.
Compensation levels in cases of torture(Article 14)Examination of a number of definitive court sentences brought against alleged perpetrators of torture and ill-treatment between 1980 and 2001 indicates that a majority of the victims of torture or ill-treatment whose complaints have been validated by the courts have had to wait more than seven years from the moment of the incident before receiving a compensation award, and some have had to wait for between 15 and 19 years.
There is no specific legislation in Spain guaranteeing fair and adequate compensation to torture victims in line with obligations under international law, including the means for as full rehabilitation as possible, in line with obligations under Article 14. (Three quarters of the compensation awards studied were below 3000 Euros, with a third being less than 600 Euros). Standards used by the courts to calculate the amount of compensation are those set under the Insurance Law, which are applicable to injuries sustained in accidents (
delitos no dolosos). These do not relate to injuries inflicted deliberately and with intent. Thus, they fail to take into account - or underestimate - the psychological effect and injury to the victims moral integrity. Amnesty Interntional is concerned that the insufficiency of legislation and regulation in this area means that torture victims are not provided with the means for the fullest possible rehabilitation.
APPENDIX ONERECOMMENDATIONSOn the crime of torture6.Article 174 of the Spanish Penal Code should be revised in order to include, among the motives for considering a crime as torture, reasons of discrimination of any kind, in line with the definition of torture set out by the Convention against Torture;
7.The Spanish government and Spanish judicial officials should recognize that rape and serious sexual assault committed by or with the consent or acquiescence of a public official is always a form of torture.
On incommunicado detention8.Article 520 bis of the Code of Criminal Procedure, which extends the period of incommunicado detention under which terrorism suspects can be held, should be abrogated;
9.Article 527 of the Code of Criminal Procedure, which allows such detainees access only to an officially appointed lawyer, subject to special restrictions, should be abrogated. The Spanish government should implement the recommendation of the CPT that persons detained by the law enforcement agencies in Spain be granted the right of access to a lawyer as from the outset of their detention, including the right to talk to the lawyer in private;
10.The Spanish government should ensure that, as recommended by the CPT, persons held incommunicado be guaranteed the right to be examined by a doctor of their own choice, it being understood that such a second examination may take place in the presence of a State-appointed forensic doctor;
11.Steps should be taken to prevent the virtually systematic and blanket application by judges of incommunicado detention, with a view to implementing the recommendation of the Human Rights Committee in 1996 that use of incommunicado detention be abandoned;(21)
12.In view of consistent and longstanding allegations by detainees held incommunicado that they are hooded and/or blindfolded by the law enforcement officers detaining them, and bearing in mind the general recommendation of the UN Special Rapporteur on torture that the practice of hooding and blindfolding of detainees be forbidden, steps should be taken to ensure that detainees are not hooded or blindfolded;(22)
13.Again, in accordance with recommendations by the UN Special Rapporteur on torture, all interrogation sessions should be recorded, and the identity of all persons present should be included in the records. Evidence from non-recorded interrogations should be excluded from court proceedings. The Spanish government should further seriously consider the introduction of video recording of interrogations, as a means both of protecting detainees held incommunicado and of law enforcement officers who may be falsely accused of acts of torture or ill-treatment;(23)
On preventing impunity14.All allegations of torture, ill-treatment and other abuses by public officials should be subject to prompt, thorough, effective and impartial investigations. Complainants should receive protection against any form of intimidation;
15.Officials under investigation should be removed from their positions of responsibility pending the outcome of disciplinary and.or judicial proceedings against them. Investigation procedures should be prompt and transparent. Complainants should have full access to the information they need to prosecute a case and be kept informed of the progress of the investigations;
16.The outcome of all criminal, disciplinary and administrative investigations into alleged violations should be made public promptly after completion of the investigation. Any official found responsible should be brought to justice and sentences should be imposed which are commensurate with the gravity of the crime. Victims should receive full and adequate reparation.
On safeguarding against torture and ill-treatment17.All detainees should be immediately informed of their rights, including the right to lodge complaints about their treatment and to have a judge rule without delay on the lawfulness of their detention. Detention procedures and practices should conform to international standards for the treatment of persons deprived of their liberty, including the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment;
18.In line with such principles, detention policy and practice should be applied without distinction on such grounds as race, colour or ethnic origin;
19.A proper code of procedure should be established for the supervision of detainees in Civil Guard barracks, police stations and detention centres for foreigners. Strict rules should be drawn up to govern the registration, transfer and custody of detainees by public officials, in order to ensure that detainees are protected from the criminal intent of one or more officers. An active policy should be pursued of employing women police officers or Civil Guards to supervise women detainees. Doctors and lawyers must be allowed to examine their patients or interview their clients in privacy.
On unaccompanied foreign children20.The Spanish authorities - including the autonomous governments in Ceuta, Melilla and elsewhere in Spain - must abide by international standards on the care and protection of unaccompanied children. Before any decision is taken to remove a child from Spain the childs case must be examined thoroughly and on an individual basis. They must be given the services of a lawyer and interpreter, and must be given the time they need to put their case and read any documents given to them to sign. Unaccompanied children must be able to enjoy all the rights guaranteeed under the UN Convention on the Rights of the Child.
APPENDIX TWOLIST OF EXTERNAL DOCUMENTS ON SPAIN PUBLISHED BY AMNESTY INTERNATIONAL FROM AUGUST 1997 TO JUNE 2002- News service item:Spain: The right to peaceful protest must be upheld in the Basque Country(EUR 41/011/2002) - 12 September 2002.
- News service item:Spain: No violent policing of demonstrators (EUR 41/010/2002) - 20 June 2002.
- Report:Spain: Crisis of identity: Race-related torture and ill-treatment by State Agents(EUR 41/001/2002) - April 2002.
- News service item:Spain: The deadly consequences of racism - torture and ill-treatment (EUR 41/005/2002) - 16 April 2002 (English and Spanish).
- News service item:Spain: Free expression and peaceful protest must be protected during EU Summit (EUR 41/004/2002) - 15 March 2002.
- News service item:Spain: "Street children" have rights too (EUR 41/003/2001) 16 August 2001.
- External paper:Spain: The alleged ill-treatment of Pedro Garcia Muñoz by Madrid police officers(EUR 41/004/2001) - June 2001.
- External paper:Spain: The alleged ill-treatment of Emilio Romero Arancibia by police officers in Barcelona(EUR 41/01/01) - February 2001.
- News service item:Spain: Rewards for torturers must not be tolerated (EUR41/005/2001) - 29 January 2001.
- External paper:Spain: ETAs killing campaign and acts of "street violence" (EUR 41/12/00) - 5 October 2000.
- External paper:Spain: Death in custody of Antonio Augusto Fonseca Mendes(EUR 41/08/00) - August 2000.
- External paper:Spain: The alleged ill-treatment of Trinidad Arteaga Orejon by police officers in Valladolid(EUR 41/10/00) - August 2000.
- News service item:Spain: ETAs new killing campaign must end (EUR 41/007/2000) - 12 June 2000.
- External paper:Spain: The fatal shooting of Miriam Gomez Cuadrado by a civil guard officer(EUR 41/05/00) - April 2000.
- News service item:Spain: Human Rights vital for the peace of Spain and the Basque Country(EUR 41/004/1999) - 29 November 1999.
- News service item:Spain: Amnesty International appeals to ETA - "Human rights are never negotiable"(EUR 41/005/1999) - 20 November 1999
- Report:Spain: A briefing on human rights concerns in relation to the
Basque peace process (EUR 41/001/1999) - 24 June 1999.
- News service item:Spain: Human rights vital for the peace of Spain and the Basque country (EUR 41/04/99) - 24 June 1999.
- External paper:Spain: Alleged ill-treatment of Moroccan national, Driss Zraidi, by officers of the Catalan regional police(EUR 41/03/99) - June 1999.
- News service item:Spain: Amnesty International demands halt to ETA killings of political representatives (EUR 41/0011/1998) - 25 June 1998.
- External paper:Spain: Youth alleges assault by Badajoz police(EUR 41/04/97) - 21 August 1997.
- Spain: Amnesty International Report 1999 to 2002
- Concerns in Europe Spain entries: January - June 2002 (EUR 01/07/2002), July - December 2001 (EUR 01/002/2002), January - June 2001(EUR 01/003/2001), July - December 2000 (EUR 01/001/2001) and January - June 2000 (EUR 01/03/00).
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(1) Concluding observations of the Committee against Torture: Spain, 27.11.97. A/53/44, paras. 119-136.
(2) (...[es] motivo de gran satisfacción el hecho de que en nuestro país no tiene lugar la tortura o los malos tratos, salvo casos muy aislados. La constatación de esta afirmación la proporciona el hecho de que las denuncias por tales prácticas han desaparecido o son realmente escasas, así como los informes de Amnistía Internacional y del Defensor del Pueblo ante las Cortes Generales ...( CAT/C/55Add.5 de 2001.
(3) This number does not include Amnesty International Report or Concerns in Europe entries on Spain, or entries in Amnesty International newsletters, such as The Wire.
(4) (Spain: Crisis of identity: Race-related Torture and Ill-treatment by State Agents( (AI Index: EUR 41/001/2002).
(5) (A public authority or official commits torture if, by abuse of his office and for the purpose of obtaining a confession or information from any person or of punishing him for any act he has committed or is suspected of having committed, he subjects that person to conditions or procedures which, by their nature, duration or other circumstances, cause him physical or mental suffering, entail the suppression oor diminution of his faculties of conscience, discernment or decision-making, or in any other way infringe his moral integrity(.
(6) For example, in the case of the sexual assault of Miriam Rosa Verástegui Templo, which is described briefly below, and is described in detail in the above-mentioned report on race-related torture and ill-treatment, the Provincial Criminal Court of Madrid set aside the charge of torture on the grounds that the assault had not been carried out in order to obtain a confession or as punishment. Grounds of (discrimination of any kind( were not legally applicable under Spanish law.
(7) (... the fact that the detainee may not consult in private with a lawyer appointed on his behalf either before or after the making of his statement is most unusual. Under such circumstances it is difficult to speak of an effective right to legal asssistance; the officially appointed lawyer can best be described as an observer(. CPT/Inf (96), Part 1, paragraphs 48 and 52.
(8) This is not in accordance with the Standard Minimum Rules for the Treatment of Prisoners, Part II, C, 91, which states: (An untried prisoner [either in police custody or in prison custody] shall be allowed to be visited and treated by his own doctor or dentist if there is reasonable ground for his application and he is able to pay any expenses incurred(.
(9) CPT/Inf (2000)5
(10) One such case is that of Unai Romano Igartua, who was arrested by plainclothes Civil Guards on 6 September 2001 in Vitoria-Gasteiz, and almost immediately transferred to Civil Guard headquarters in Madrid. He was held for the maximum five-day period and did not see the state-appointed lawyer during the first interrogations. While being held incommunicado, he was reportedly severely beaten on repeated occasions, subjected to electric shocks, forced to bend continually up and down, and told that his mother was dead. While being held, his head began to swell to the point where he temporarily lost his sight. Photographs were taken of his swollen head. Unai Romano admitted that, while in a cell, he tried to cut his wrists, but he claimed that the severe swelling of his head was due to beatings. This has been denied by the Civil Guards who claim he hit his head against a wall deliberately. Even if this were true - and Unai Romano has emphatically denied it - the question to be asked is what drives detainees to self-mutilation while they are being held incommunicado. Unai Romano was provisionally released from custody on 27 February 2002. His complaint of torture was admitted for investigation by Magistrates Court No. 25 in Madrid. (For further details see Concerns in Europe : July-December 2001 [AI Index: EUR 01/002/2002]).
(11) CPT/Inf (2000) 5
(12) CERD/C/304/Add.95, 19 April 2000. Concluding observations/Comments
(13) (Spain: Crisis of identity: Race-related Torture and Ill-treatment by State Agents( (AI Index: EUR 41/001/2002). This report describes, on page 20, the case of Rosalind Lecraft Williams who appealed to the Constitutional Court on this matter.
(14) This report has also been published in Spanish, in book form, under the title (España: Crisis de identitad: Tortura y malos tratos de índole racista a manos de agentes del Estado(. The Spanish version contains some updates of cases. Subsequent correspondence between the Spanish Government and Amnesty International is included in the appendices of the book, together with a copy of a press statement.
(15) The report includes a detailed examination of the case of António Augusto Fonseca Mendes, who died in police custody in Arrecife, Lanzarote (Canarias) on 20 May 2000. The case was shelved by the investigating judge in March 2001 - a decision upheld on appeal, on grounds of insufficient evidence that police officers had been involved in the death. Amnesty International remains seriously concerned about this case. It believes the judicial investigation was not carried out with the thoroughness or impartiality it required and that many important questions remained unresolved, including the cause of death. The general handling of the case by judicial authorities, politicians and police officers has raised grave doubts about the authorities( compliance with international standards protecting the right to life and physical integrity. The organization believes that the Fonseca case should be re-opened for further investigation, both to ensure that further, crucial light is thrown onto the specific circumstances surrounding his death, and to ensure that preventive measures can be taken to prevent such deaths in future.
(16) A prominent Spanish NGO, the Asociación contra la Tortura (ACT), stated in 1998 that it knew of 20 complaints of sexual abuse in detention centres, including police stations, in 1996 and 1997 and that, by November 1998, it had learned of nine new cases. Several newspaper reports observed, in 1998, that there had been an increase in such complaints. The Amnesty International report referred to above contained information about seven specific cases.
(17) Concerns in Europe: January-June 2002 (AI Index: EUR 01/007/2002)
(18) CRC/C/15/Add.185. The Committee recommended, as has Amnesty International, that Ceuta and Melilla be given adequate resources to care for the children. The Committe also recommended, among other things, that all measures be taken to prevent irregular procedures in the expulsion of unaccompanied foreign children; that reports of ill treatment of children be effectively investigated; that the children be provided with information about their rights under Spanish and international law, including the right to apply for asylum; that all necessary measures be taken to improve conditions and safety of residential centres and train adequately residential staff; and that effective mechanisms be established to receive and address complaints from children in care, to monitor standards of care and, in light of article 25 of the Conventiion, establish regular periodic review of placements.
(19) Asociación pro Derechos de la Infancia (PRODEIN)
(20) See (Spain: Crisis of identity: Race-related torture and ill-treatment by state agents( (AI Index: EUR 41/001/2002) for specific illustrations of these points (pp 87-93).
(21) CCPR/C/79/Add.61
(22) UN document E/CN.4/1995/34
(23) UN document E/CN.4/1998/38
| AI Index:EUR 41/012/2002 | | 1 October2002 |
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